PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

ERLINDO
MAKILANG, accused-appellant.
SANDOVAL-GUTIERREZ, J.:
Appeal from the decision[1] dated December 28, 1998 of the
Regional Trial Court (Branch 25), Bian, Laguna, in Criminal Case No.
9624-B, finding Erlindo Makilang guilty of the crime of rape and
sentencing him to suffer the penalty ofreclusion perpetua, and to pay the
victim, his 12-year old daughter Evelyn Makilang, P100,000.00 by way of
moral damages.
The Information[2] against accused Erlindo Makilang reads:
That on or about July 30, 1996, in the Municipality of Bian, Province of
Laguna, Philippines and within the jurisdiction of this Honorable Court,
accused Erlindo G. Makilang, with lewd design and by means of force,
violence and intimidation, did then and there willfully, unlawfully and
feloniously have carnal knowledge of said Evelyn Makilang y Corino, a
twelve (12) years old, against her will and consent.
CONTRARY TO LAW.
When arraigned, accused pleaded not guilty.[3] Thereafter, trial
commenced. The prosecution presented as evidence the testimony of
Evelyn Makilang and the NBI Medico-Legal Report.
The version of the prosecution as summarized by the Solicitor
General in the appellees brief is reproduced hereunder:
On July 29, 1996, Evelyn Makilang, daughter of appellant, grade six in
the elementary school and twelve years old at that time, accompanied
her mother, Salve (appellants live-in partner) to Bian, Laguna. Appellants
family maintained their residence in Paraaque, but since appellant was
employed in the Olivarez Tri-Cinema construction project in Bian, Salve,
who was engaged in selling cooked food, decided to do business there
for a few days. Evelyn went along to help her cook and sell food (pp. 910, 29 33, tsn, June 10, 1997).
Evelyn and Salve, just like in their past visits with appellant, stayed with
him in the construction barracks. The barracks is a small sleeping
quarter for workers who were temporarily working there. Except for
appellant and his family, there were no other persons inside the structure
on the day of the incident (pp. 10, 33, Ibid). They slept on the floor, with
Salve in the middle of appellant and the victim (p. 43, Ibid).
It had been the appellants habit, when he goes home to Paraaque, to
transfer to his daughters side, after his wife (who is an early riser) leaves
their sleeping quarters. Appellant would then embrace Evelyn. This
behavior was not lost to Salve, who was always worried whenever
appellant goes home. Evelyns maternal grandmother likewise noticed
appellants action. She had warned Evelyn and Salve that something
untoward might happen. Still trusting at that time, Evelyn simply ignored
her (pp. 34, 38-40, Ibid).
In the morning of July 30, 1996 at around five oclock, Evelyn awoke
when she felt someone was going on top of her. It was appellant and he
was naked (p. 12, tsn, June 10, 1997). She realized that she no longer

had her cycling shorts and underwear which she had worn the night
before. Her bra, which opens in front and not at the back, was already
opened, exposing her breasts. With one hand, appellant mashed her
breasts, with the other, he fingered her vagina (pp. 11-15, tsn, June 20,
1997; pp. 48-55, June 17, 1997). Evelyn felt appellants finger on her
vagina for 9-10 seconds (p. 2, tsn, June 17, 1997). She felt pain. She
tried to fight appellant off by pushing him with her hands. Appellant
simply tightened his grip on her hands (pp. 6-13, tsn, June 17, 1997).
Appellant then held his penis with his hand to insert it inside Evelyns
vagina. She felt pain at the entrance of her vagina. After subsiding for a
while, a more severe pain was felt by her, when appellant once more
tried to insert his penis (pp. 12-14, tsn, June 17, 1997). At this point,
Evelyn was able to summon her strength and gave a hard push to
appellant who was thrown off to his side. Seizing the chance, Evelyn
hurriedly put her cycling shorts, but without her panties, on (p. 13, tsn,
June 10, 1997).
Evelyn slipped away from the barracks and ran towards her mother who
was about 20 meters away. Salve had already been up since four in the
morning preparing the food she would sell (pp. 41-43, tsn, June 10,
1997). Evelyn told her mother what appellant had done to her. Salve
scolded appellant. Mother and daughter immediately went back to
Paraaque (p. 11, tsn, June 17, 1997).[4]
The results of the medico-legal examination conducted by Dr.
Annabelle L. Soliman of the NBI Medico-Legal Division disclosed the
following findings:
General Physical Examination:
Fairly nourished, conscious, coherent, cooperative, ambulatory. Breast,
developed, hemispherical, doughy. Areolae, brown, measures 3.5 cm. in
diameter. Nipples, brown, protruding, measures 0.5 cm. in diameter. No
extragenital physical injury noted.
Genital Examination:
Pubic hair, fine, short, scanty. Labia majora and minora,
coaptated. Fourchette, tense. Vestibular mucosa, pinkish. Hymen
moderately thick, moderately tall, intact. Hymenal orifice, measures 2.0
cm. in diameter. Vaginal walls, tight. Rugosities, prominent.
Conclusions:
1. No evident sign of extra genital physical injury noted on
the body of the subject at the time of examination.
2. Hymen intact and its orifice small (2.0 cm. in diameter) as
to preclude complete penetration by an average-sized
adult male organ in full erection without producing
hymenal injury.[5]
Erlindo Makilang denied committing the crime charged, claiming
that he could not have raped his daughter in the morning of July 30,
1996 at Bian, Laguna because he was then at the construction site of a
project in Tagaytay City.[6] It was only later, or on August 10, 1996, after
the completion of the Tagaytay project, when he transferred to Bian. [7] On

that day, he visited his family in Paraaque and gave money to his
children. Without his knowledge, his wife Salve and daughter Evelyn
followed him to Bian to confront Beng, his live-in partner. Evelyn attacked
Beng with scissors, so he pushed her (Evelyn) by hitting her buttocks
with a piece of wood. Enraged, Salve shouted at him, uttering we will not
stop until and unless you are incarcerated. He surmised that this incident
could have motivated Salve and Evelyn to file the instant complaint
against him.[8]
Gemma Makilang, accuseds sister-in-law, testified that he worked
as a mason in a construction project in Tagaytay City from March 1995 to
August 1996. During that period, he lived with her at the barracks near
the project site. On July 29, 1996, the accused spent the night there.
[9]
Then, at six oclock the next morning, she asked money from the
accused because her youngest daughter was sick. [10] It was only on
August 10, 1996 when they transferred to Bian, Laguna.[11]
On December 28, 1998, the trial court rendered a decision, [12] the
dispositive portion of which reads:
WHEREFORE, finding accused ERLINDO MAKILANG GUILTY beyond
reasonable doubt of the crime of RAPE defined and penalized under
Article 335 of the Revised Penal Code, without any mitigating and
aggravating circumstance, hereby sentences him to suffer the penalty
of RECLUSION PERPETUA, and to pay the victim the sum of ONE
HUNDRED THOUSAND (P100,000.00) PESOS as moral damages.
No pronouncement as to costs.

A She was cooking the rice, sir.

Q Where was she cooking at the time?
A The place where she was cooking was far from the barracks, sir.
xxx
Q Now, aside from your father and you, was there any other person
inside the barracks at 5:00 oclock in the morning of July 30,
1996?
A None, sir.
Q Now, you said you were sleeping at that time. Do you recall if
there was any unusual incident that happened while you were
at the barracks on July 30, 1996 at about 5:00 oclock in the
morning?
A Yes, sir.
Q What was that unusual incident?
A When I was sleeping, I felt somebody was on top of me, sir.
Q Now, when you felt that there was somebody on top of you,
what did you do?

The Provincial Warden is hereby directed to commit the person of

accused Erlindo Makilang to the New Bilibid Prison, Muntinlupa City,
immediately upon receipt hereof.

A I looked at it, sir.

SO ORDERED.[13]

A I saw my father with his hands mashing my breasts, sir.

Appellant now interposes the instant appeal, assigning to the trial

court the following errors:

Q Why, what were you wearing at the time Madam witness when
you felt that somebody was on top of you?

I. THE COURT A QUO ERRED WHEN IT FAILED TO

DISCREDIT THE TESTIMONY AND QUESTION THE
CREDIBILITY OF THE COMPLAINANT, EVELYN
MAKILANG; and
II. THE COURT A QUO ERRED WHEN IT FAILED TO
APPLY THE PROVISION OF THE REVISED PENAL
CODE THAT PARDON BY THE OFFENDED PARTY IS
ONE OF THE WAYS OF BARRING CRIMINAL
PROSECUTION.[14]

Q What did you see after you looked?

A I was wearing a blouse, sir.

Q What about your lower portion, what were you wearing?
A None, sir.
Q You mean to say you do not have panty at the time you felt that
somebody was on top of you?
A Yes, sir.

After a meticulous and thorough evaluation of the records of this

case, we find no compelling reason to depart from the trial courts finding
on appellants culpability of the crime charged.
Evelyns testimony is plausible in its entirety, narrating
chronologically how appellant committed the dastardly act complained
of, thus:
Q Now, at that point in time while you were sleeping at Olivarez Tricinema with your father, where was your mother?

Q You said that you saw your father on top of you mashing your
breasts. What was he wearing at that time while she was
mashing your breasts while on top of you?
A None, sir.
Q When you said he was mashing your breasts, what did you
do next, if any?

A I pushed him, sir.

Q Why did you push him?

Q Just one question your honor. You said Lady Witness, that your
father was trying to insert his penis in your vagina, my
question is, what did you feel?

A Because, he was mashing my breast and he wanted to insert

his organ to my organ, sir.

A I felt pain sir because he was forcing his penis into my

vagina, sir.

Q Why did you say that your father was trying to insert his
penis to your vagina?

Q On what part of your body you felt pain when your father was
trying to insert his penis to your vagina?

A I felt it, sir.

Atty. ARELLANO

Q What did you feel when you say you felt it?

We Object your honor. That is improper to redirect your honor. This

should have been done during the examination in chief.

A I just felt pain, sir.

COURT

Q When you said organ, Madam witness, you are referring to

your private part or vagina?

Witness may answer.

A Yes, sir.

A At the entrance of my vagina, sir.

Q How long your father tried to insert his penis to your vagina?

COURT

A At around five (5) minutes, sir.

Q How many times did you feel the same?

Q Now, when this incident was happening, what was the light
condition at that time inside the barracks?

A Twice your honor.

A There was light, sir.

xxx
Q You said that you pushed him after your father was trying to insert
his penis to your vagina. What happened to him when you
pushed him?
A He went to the side, sir.
Q What did you do after pushing your father?
A I wore my shorts even though it is not a panty, sir.
Q After that what happened next, Ms. Witness?
A I went downstairs and looked for my mother, sir. [15] (Emphasis
ours)
From the foregoing testimony of Evelyn, there was indeed no full
penetration of appellants penis into her vagina. Nonetheless, appellant,
undoubtedly, tried to gain penile penetration at the entrance of her
vagina for around five (5) minutes. That explains why Evelyn complained
of having felt pain in her private part. She repeatedly complained of this
pain, thus:
FISCAL

Q Are you telling this Court that your father attempted to insert his
penis inside your vagina for two (2) times?
A What I mean to say your honor is that, in the first instance that
he wanted to insert his penis to my vagina we were in the
position that he was holding my right hand by his left hand
and he was trying to insert his penis, then I felt pain. And
then the pain was gone, and then again, I felt pain when he
tried again to insert his penis into my vagina, sir.
Q And when your father was trying to insert his penis inside your
vagina for the second time, that was the time when you
pushed him very hard?
A Yes your honor.
Q Because you felt pain once more?
A Yes your honor.[16] (Emphasis ours)
The intense pain Evelyn suffered could be nothing but the result of
penile penetration into the labia of her pudendum, or the bombardment
of the drawbridge sufficient to consummate rape. [17] Jurisprudence
abound that full or complete penetration of the vaginal orifice is not
required to consummate rape, for what is essential is the introduction
of the male organ into the labia of the pudendum, no matter how
slight.[18] In People v. Villanueva,[19] this Court emphasized: In order that
the crime of rape may be consummated, the successful penetration by
the rapist of the females genital is not indispensable. Penile invasion, it
has often been held, necessarily entails contact with the labia and
even the briefest of contacts under circumstances of force,

intimidation or unconsciousness, even without laceration of the

hymen, is deemed to be rape in our jurisprudence.
Coming now to the first assigned error, appellant maintains that
the rape story was merely concocted by Evelyn and her mother, who
both despise him for being a womanizer. To discredit the value of
Evelyns testimony, he questions her moral character claiming that her
daughter is not a young ordinary lass whose story no one could doubt.
[20]
He cited the following testimony of Evelyn:
ARELLANO (appellants counsel):
xxx
Q Now, immediately after you woke up and you felt your father was
on top of you, what was your father doing immediately after
you woke up?
A He was mashing my breasts and he fingered my vagina, sir.
Q How did you learn this fingering my vagina at your tender age?
A I heard that word from adults especially from men, sir.
Q You were telling us, you were mingling with men talking about
fingering?
FISCAL:
Misleading your honor.
COURT:
Witness may answer.
WITNESS:
A I have male friends but they were not the ones talking about
fingering, sir. I have male friends because we are playing
basketball.[21] (Emphasis ours)
xxx
ARELLANO
Q Because of that, you hated your father?
A I have forgiven my father, sir, because it is natural for a man to
have concubine as long as he will not neglect his family.
[22]
(Emphasis ours)
Appellant argues that Evelyns familiarity with lustful and immoral
acts like fingering of the vagina and maintaining a concubine as being
natural for a man, unveiled her corrupted morals. [23] As such, appellant
submits that the court a quoerred in giving credence to Evelyns
testimony.

We disagree.
The victim was a hapless twelve-year old girl when her father
raped her. She was not the loose and promiscuous girl appellant wants
this Court to believe. Antithetically, Evelyn was an intelligent lass as
shown by her sharp recollection of her harrowing
experience. Unfortunately, she was already exposed to the dark realities
of life at a tender age. And this she sadly learned and saw from her very
own father. As aptly observed by the Solicitor General:
Moral depravity cannot be imputed against Evelyn simply because her
juvenile though intelligent mind recognizes and adopts societal tolerance
for men who maintain mistresses.
That young children are aware of this social phenomenon should not
exactly be a source of great wonder, certainly, not in the face of late
twentieth century more. Appellant himself is the major contributor to his
daughters untimely encounter with reality. He admitted that he has
concubine (p. 13, TSN, July 19, 1997). From the records, he seems to
have two or three more (p. 43, TSN, June 16, 1997).
He is not yet even married to Evelyns mother, nor does he appear to be
married to anyone at all (p. 7, TSN, July 19, 1997). All these were not
hidden from Evelyn. It is thus perplexing as to how appellant could
expect convent-bred innocence from his daughter when he is a regular
destabilizer of conventional marital norms.[24]
That Evelyn spoke of fingering and concubines in the course of
her testimony is not fatal so as to tarnish her credibility as victim-witness
of her fathers bestiality. To our mind, her being vocal about these matters
portrays candid, albeit bold, admission of her flamboyant mind which all
the more strengthens the veracity and spontaneity of her testimony. She
could have deliberately veiled this personality if only to generate and
ensure sympathy from the trial court. Yet, Evelyn remained sincere and
outspoken on any question propounded to her. We note, with sadness
and disdain, the proliferation of rape cases where fathers molest and
defile the innocence of their own flesh and blood. Worse, they still have
the audacity to malign and slight their daughters reputation if only to
exonerate themselves from their unspeakable deed, as in the case at
bench.
We likewise reject appellants theory that Evelyn and her mother
fabricated the rape story. This Court has consistently held that no young
and decent lass will publicly cry rape, particularly against her father, if
such were not the truth.[25]Courts usually give greater weight to the
testimony of a girl who is a victim of sexual assault, especially a minor,
and particularly in cases of incestuous rape, because no woman would
be willing to undergo a public trial, along with the shame, humiliation and
dishonor of exposing her own degradation, were it not to condemn an
injustice and to have the offender apprehended and punished. [26] Even
when consumed with revenge, it would take a certain amount of
psychological depravity for a young woman, like Evelyn, to concoct a
story which would put her own father for most of his remaining life in jail,
if not put him to his death, and drag herself and the rest of her family to a
lifetime of shame.[27] Too, it is highly unnatural for a mother, virtuous or
not,[28] to use her own daughter as an engine of malice, especially if it will
subject her daughter to embarrassment and even stigma.[29]
Neither are we persuaded by appellants alibi. We have
consistently held that for alibi to prosper, it is not enough for the accused

to prove that he was elsewhere when the crime was committed, but he
must also demonstrate that it would be physically impossible for him to
be at the scene of the crime at the time of its commission. [30] Further, alibi
must be supported by the most convincing evidence since it is an
inherently weak defense which can easily be fabricated.[31]
Here,
appellant
utterly
failed
prove
the physicalimpossibility requirement of alibi. He insists that he was working at the
project site in Tagaytay City when the crime was committed in Bian,
Laguna. But this fact does not preclude his presence at the locus
criminis as revealed by his very own corroborating witness, Gemma
Makilang. On cross-examination, she declared that appellants employer
also owned another project in Bian, Laguna, [32] and that he was one of
the workers frequently transferred to the Bian project site when there
were rush jobs to be done.[33] Significantly, she said that the distance
between these two project sites can easily be negotiated in a matter of
only over an hour by a public transportation, and when the company
truck is used to transport the workers, the trip would only take one (1)
hour.[34] Thus, it was not physically impossible for appellant to have been
at the scene of the crime at the time of its commission. His defense of
alibi becomes completely worthless for he was positively identified by the
victim as the author of her defloration.
Anent the second assigned error, appellant argues that assuming
he committed the crime, he should nonetheless be entitled to an
acquittal since Evelyn herself categorically declared that she had already
forgiven her father.[35] Suffice it to state that in cases where the offended
party is a minor, the pardon must be given by both the parents and the
offended party.[36] Here, while it appears that Evelyn forgave appellant,
the records are bereft of any similar act from her mother. Thus,
appellants plea that he was effectively pardoned must fail.

the victim and her relationship to the offender is a special qualifying

circumstance which must be both alleged in the Information and proved
during the trial with certainty. [37] True, the prosecution was able to
establish the fact of minority of the victim as well as her relationship to
the offender. However, while the circumstance of minority was
specifically alleged in the Information, this was not so with respect to the
fact of relationship between the offender and the offended party. Such
defect in the Information is fatal and effectively bars conviction of the
appellant for rape in its qualified form which is punishable with death.[38]
Finally, we rectify the error committed by the court a quo with
respect to the award of damages. The victim was awarded P100,000.00
by way of moral damages. That is not in line with the prevailing
jurisprudence,[39] which fixed the award of moral damages to
P50,000.00. In addition, an amount of P50,000 should be awarded
Evelyn as indemnity ex delito.[40] Since the fact of relationship between
the offender and the victim is an aggravating circumstance, the award of
exemplary damages in the amount of P25,000.00 is also in order. [41] the
Court, speaking through Justice Jose C. Vitug, clarified that an
aggravating circumstance, whether ordinary or qualifying, should entitle
the offended party to an award of exemplary damages within the
meaning of Article 2230 of the Civil Code.
WHEREFORE, the appealed decision convicting Erlindo Makilang
of the crime of rape and sentencing him to suffer the penalty
of RECLUSION PERPETUA is hereby AFFIRMED. Insofar as the civil
aspect of the case is concerned, the appealed decision is
MODIFIED. Appellant is ordered to PAY the victim, Evelyn Makilang,
P50,000.00 as indemnity ex delito; P50,000.00 as moral damages; and
P25,000.00 as exemplary damages. Costs against the appellant.
SO ORDERED.

We will not disturb the trial courts imposition of the penalty

of reclusion perpetua against appellant. The concurrence of minority of